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[2013] ZAECPEHC 57
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National Director of Public Prosecutions v Banzana and Others (1162/2013) [2013] ZAECPEHC 57 (12 November 2013)
15
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case no:
1162/2013
Date
heard: 31 October 2013
Date
delivered: 12 November 2013
In the
matter between
THE
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS
.........................................................................
Applicant
vs
MZUKISI
SAMUEL BANZANA
.....................................................
First
Respondent
LULAMA
DOROTHEA BANZANA
..........................................
Second
Respondent
ABSA
BANK
....................................................................................
Interested
Party
In Re: Erf 1808, Theescombe, Nelson Mandela Bay Metropolitan
Municipality and various vehicles
JUDGMENT
PICKERING
J
:
On 30 April 2013 a Preservation Order was granted by Chetty J in
terms of
section 38
of the
Prevention of Organised Crime Act 21 of
1998
(“
POCA”
) in respect of certain of the
respondents’ assets on the basis that there were reasonable
grounds to believe that the property
concerned was the proceeds of
corruption.
The property concerned, as described in the Preservation Order, was:
“
1.1. Erf 1808, Theescombe, Nelson
Mandela Bay Metropolitan Municipality also known as 14 Overdale
Street, Theescombe, Port Elizabeth
with an estimated value of
R1 500 000 (the house);
1.2. A grey BMW 7 Series 750i Sedan Automatic motor vehicle with
registration number FKS 370 EC, engine number 20824550 and chassis
number WBAKA2030CW13128 (the BMW);
1.3. A silver Nissan Pathfinder 2.5 5/SP Automatic motor vehicle
with registration number FDF 257 EC, engine number YD25872793A and
chassis number YSKJVWR51Z0229593 (the Nissan); and
1.4. A red BMW 1 Series Sedan 120i Convertible motor vehicle with
registration number FJK 700 EC, engine number B200I616 and chassis
number WBAUL52000VL55186 (the 1 Series.)
”
Thereafter, on 9 July 2013, applicant brought the present application
for an order in terms of s 48 of POCA declaring the aforesaid
property forfeit to the State. In so doing applicant relies in
particular on the provisions of the Prevention and Combating of
Corrupt Activities Act 12 of 2004 (“
PCCA
Act”).
First respondent is married in community of property to second
respondent. Second respondent is not alleged to have been involved
in
any corrupt activities. She in turn has brought an application (page
165 of Forfeiture papers) for an order that, in the event
of a
forfeiture order being granted, 50% of the value of the assets
referred to in paragraph 1.1 of the Preservation Order be excluded
from the operation of any forfeiture order which may be granted and
that such assets or the value thereof be transferred to her
to be
held by her in a separate estate. She applies in the alternative, and
in the event of the Court declining to grant an order
excluding such
assets, that the value of the immovable property, in excess of the
amount of R1 450 640,27, be excluded from
the operation of any
such forfeiture order.
I will return to this issue hereunder.
First respondent is employed as a General Manager by Mzingisi
Development Trust (“
the MDT
”
)
. It is common
cause that the MDT was established in 1992 with the specific aim of
alleviating the suffering and improving the standard
of living of the
community on a charitable basis. During December 1997 MDT secured
land in the Bethelsdorp Northern Area. It thereafter
entered into a
“
land availability and service agreement
” with the
then Transitional Local Council of Port Elizabeth. The preamble of
this agreement reads as follows:
“
Whereas
A. A total of approximately 7500 families are currently resident
in an area known as Soweto-on-Sea who do not own land;
B. The Provincial Housing Board has agreed to provide subsidies
for the development of serviced erven and top structures in the area
known as Bethelsdorp North;
C. The Mzingisi Development Trust will enter into an agreement
with the PHB and the Council for the development of the area known
as
Bethelsdorp North;
D. The previous development of the area known as Soweto-on-Sea has
necessitated the development of an adjacent area to resettle persons
presently residing within a flood-plain and to promote
dedensification of the area known as Soweto-on-Sea;
E. The parties have accordingly agreed to develop an area known as
Bethelsdorp North as a residential township for the purpose of
disposing of erven to existing residents in the area known as
Soweto-on-Sea able to acquire ownership in Bethelsdorp North;
F. The land to be developed in the area known as Bethelsdorp North
is owned by and situated within the local authority area of the
City
Council of Port Elizabeth.
”
Thereafter, a certain construction business known as MOM
Constructions CC (“
MOM
”) was appointed by the MDT
to construct 1211 housing units on this land which contract was
managed or supervised by first
respondent. Applicant’s averment
that MOM was appointed without proper tender procedures having been
followed is disputed
by first respondent. It is, however, not
necessary to determine this dispute.
According to first respondent MOM fitted the MDT’s profile in
terms of emerging contractors inasmuch as “
their directors
were young, previously disadvantaged and ostensibly well capable of
performing in terms of the contract.
” The directors of MOM
were Wentzel Meyers and Jocelyn Meyers.
First respondent states that all went well in the beginning and that
MOM performed impressively in terms of its obligations. Indeed,
so
well did matters go that at some stage, according to first
respondent, the directors of MOM approached the Trust and “
thanked
them
” for providing them with a rare opportunity for which
they said they were very grateful. They said “
that they
would like to do something for the
Trust
as a
token of their appreciation
”. (My emphasis.)
So often promises are disappointingly not translated into action but
not so in the present case. It is common cause that certain
payments
were made by MOM to first respondent (albeit not to the Trust) in the
total amount of R2 925 092,63. The manner
in which these
payments were made and utilised is set out in the affidavit of one
Fraser, a senior financial investigator in the
office of the Asset
Forfeiture Unit, Port Elizabeth as follows:
“
1. The purchase of a silver BMW 750i
motor vehicle with registration number DZD 676 EC (the BMW) on 11
April 2008 from Budding Trade
87 (Pty) Ltd (Budding) in the total
amount of R775 912,29 for which a bank guaranteed cheque was
given to the first respondent.
In evidence hereof I attach a copy of
MOM’s bank statement marked GLF 11. I also attach hereto the
eNatis printout marked
GLF 12 showing that the first respondent was
the owner. An invoice headed Continental Cars (the trading name of
Budding) dated
11 April 2008 confirms that the sum of R775 912,29
was required from the first respondent for the purchase of the BMW
and
I respectfully refer to GLF 13. The BMW was traded in on 23 June
2010 as set out in the Continental Cars tax invoice (GLF 14) for
a
space grey metallic BMW 750i motor vehicle with registration number
FKS 370 EC; the eNatis printout in this regard is annexed
as GLF 15
and shows that the first respondent is its owner.
2.
The purchase of a silver Nissan Pathfinder motor vehicle with
registration number FDF 257 EC (the Nissan) on 19 November 2008 from
Nissan Eastern Cape (Nissan EC) in the amount of R473 616,51 for
which a bank guaranteed cheque was given to the first respondent.
I
attach a copy of MOM’s bank statement marked GLF 16. I also
annex marked GLF 17 being a tax invoice dated 20 November 2008
of
Nissan Eastern Cape confirming that the first respondent presented
the cheque for the purchase of the Nissan, which is registered
in the
name of the first respondent as set out in GLF 18.
3. The settlement of a silver VW Polo motor vehicle with
registration number DZF 057 EC (the Polo) on 24 March 2009 with
Wesbank
in the amount of R193 923, 56 for which a bank
guaranteed cheque was given to the first respondent. I attach a copy
of MOM’s
bank statement marked GLF 19 in confirmation. I annex
marked GLF 20 being an email from Wesbank dated 17 April 2013
confirming
that the first respondent settled the purchase of the Polo
(which was registered in the name of second respondent as set out in
the eNatis printout annexed as GLF 21), but traded in on 19 August
2011 as set out in the Continental Cars tax invoice (GLF 22)
for a
crimson red BMW Convertible 120i motor vehicle with registration
number FJK 700 EC (the 1 Series); the eNatis printout in
this regard
is annexed as GLF 23 and shows that the first respondent is its
owner.
4. The settlement of the outstanding bond on the respondent’s
house i.e. Erf 1808, Theescombe, Nelson Mandela Bay Metropolitan
Municipality also known as 14 Overdale Street, Lovemore Heights, Port
Elizabeth on 19 November 2008 in the amount of R1 481 640,27
with Nedbank. A cheque to this value was handed to the first
respondent. I attach a copy of MOM’s bank statement marked GLF
25. The house is registered in the name of the respondents herein as
set out in GLF 26; there is no longer a mortgage bond over
it.
”
First respondent does not deny that he acquired the various
properties in the manner set out by Fraser. He denies, however, the
further allegations by Fraser to the effect that these were corrupt
payments serving as gratification in order to secure the continued
award of the tender to MOM.
It should be noted that for their part the directors of MOM claimed
in affidavits in the preservation proceedings and in a civil
action
instituted by MOM against first respondent under case 3627/2010, that
the payments were in fact a loan solicited by and
made to first
respondent. First respondent denied, not only in his plea to the
civil action but also in his affidavit opposing
an application for
summary judgment (which application was refused) as well as in these
proceedings, that the amounts paid were
a loan.
He states that the payments were in fact made as a token of MOM’s
appreciation “
for what they said I had done in providing
them with the opportunity of participating in the project.
”
In this regard he continues to state as follows in his affidavit
opposing the Forfeiture application:
“
I advised them on more than one occasion
that I had done nothing special for them, and that I would have
assisted any party involved
in the project to the same extent as I
have assisted them. Nonetheless, the members of MOM believed that I
was of great assistance
to them, and made the payments to me,
apparently as a token of their appreciation. It may be that the
members of MOM perceived
that they were eventually under-performing
in terms of their contract, and perhaps thought that by making these
payments to me,
they would secure their contract. If that was their
motive, they had never conveyed same to me and I most certainly did
not give
them any preferential treatment, or continue to involve them
in the project, as a result of such payments. As can be seen from the
above, I was in fact instrumental in terminating their contract due
to their poor performance.”
The two Meyers, however, state in their affidavits that the contract
was terminated after they refused to lend to first respondent
a
further amount of R1,5 million which he required to purchase a fuel
station.
Before turning to deal with the merits of the application it is
necessary first to deal with an application by first respondent
in
terms of Rule 6(15) of the Rules of Court to strike out certain
allegations made in both the Preservation and Forfeiture
applications.
In certain of the affidavits allegations are made relating to other
instances of alleged corrupt activities not forming part of
this
application and which do not relate to the acquisition of the assets
in question by first respondent which applicant seeks
to have
declared forfeit.
These allegations are made in affidavits by Curtis Daniell, Allicia
Daniell and Rev. Deric Derbyshire. The gravamen thereof is
that
Curtis Daniell approached first respondent requesting him to appoint
his construction company to work on the Bethelsdorp North
housing
project. According to Daniell first respondent asked him for a
so-called “
advance payment
” of approximately
R400 000,00. First respondent told him that the money was for
himself and his “
connections
”, such connections
allegedly being the councillors who made the project possible.
Daniell then approached Derbyshire who
gave him R130 000,00 to
be paid to first respondent. The money was then allegedly paid over
by Daniell to first respondent
in cash.
Further allegations concerned one Whiteley who alleged in his
affidavit that he was requested by first respondent to submit a quote
for the rectification of poor workmanship relating to phase 1 of the
Bethelsdorp North housing project and was further asked for
an
“
upfront
” payment or “
commission”
in the sum of R300 000,00 before he could secure that project.
Mr. Scott S.C., who appeared for the respondents, submitted that if
such allegations were not struck out first respondent would
be
prejudiced in that he would be obliged to deal with serious
allegations which he disputed and which were irrelevant to this
application. He submitted accordingly that the general rule, namely
that evidence of facts similar to the facts in issue was not
admissible to prove the occurrence of the facts in issue, was
applicable.
Mr. van der Linde S.C., who appeared for applicant, submitted with
reference,
inter alia
, to
Mood Music Publishing Co Ltd v De
Wolfe Ltd
[1976] 1 All ER 763
and
Gosschalk v Rossouw
1966
(2) SA 476
(C) that in proximity of time, method and circumstance
there was a sufficient
nexus
between the evidence which it was
sought to strike out and the facts in the present case to render the
similar fact evidence admissible.
In my view, however, in the circumstances of this matter, this
nexus
is not present and does not establish such a general system or modus
operandi on the part of first respondent that the occurrence
of the
facts in issue may be logically inferred. (See
Gosschalk v Rossouw
supra
at 483 A.) The instances referred to above allege the
solicitation of bribes by first respondent. This is not the situation
in
the present case where the directors of MOM alleged that they
loaned the amounts in question to first respondent and where first
respondent for his part alleges that the payments were a gift. As was
stated in
Gosschalk v Rossouw
supra
at 482H –
483A evidence of similar facts may not be adduced when it merely
shows a particular propensity on the part of the
author of such
facts.
In my view therefore these affidavits must be struck out together
with those paragraphs in the affidavits of Adv. Kingsley and
of
Fraser in which the allegations are repeated.
Application is also made to strike out certain paragraphs and
sentences in the affidavits of Wentzel Meyers and Jocelyn Meyers
on
the basis that the allegations in question were argumentative. It is
not necessary to detail these as they were, in my view,
clearly
argumentative, an example being “
if the payments were a gift
why would first respondent ask if we could destroy the deposit slips
for the sum of R2 925 092,63.
”
In the circumstances the application to strike out succeeds with
costs. The following allegations are struck out:
“
1. In the preservation application:
sub-paragraph 27.6 in the affidavit of Willie Ludwig Kingsley;
paragraphs 21 to 31 in the affidavit of Glynn Llewellyn Fraser;
the second and third sentences in paragraph 7 of both the
affidavits of Wentzel Charles Meyers and Jocelyn Brian Meyers
(annexures
“GLF6” and “GLF7” to Fraser’s
affidavit);
annexures “GLF28” to “GLF37” of the
affidavit of Fraser.
2. In the forfeiture application:
2.1 sub-paragraph 30.11 in the affidavit of Willie Ludwig
Kingsley;
2.2 the second sentence in sub-paragraph 4.2, sub-paragraph 4.3,
the last sentence in sub-paragraph 4.4 and sub-paragraph 4.7 of
the
affidavit of Wentzel Charles Meyers;
2.3 the second sentence in sub-paragraph 4.2, sub-paragraph 4.3,
the last sentence in sub-paragraph 4.4 and sub-paragraph 4.7 of
the
affidavit of Jocelyn Brian Meyers;
2.4 the affidavits of Curtin Thomas Daniell, Alicia Francina
Daniell, Deric Donald Derbyshire and Arnold George Whitely;
2.5 paragraphs 6 to 9 in the affidavit of Glynn Llewellyn Fraser.
Applicant is ordered to pay the costs of the application to strike
out.
I turn then to deal with the merits of the matter.
Section 3 of the Pevention and Combating of Corrupt Activities Act 12
of 2004 (PCCA Act) creates a general offence of corruption.
It reads
as follows:
“
Any person who, directly or indirectly –
accepts or agrees or offers to accept any gratification from any
other person, whether for the benefit of himself or herself or
for
the benefit of another person; or
gives or agrees or offers to give to any other person any
gratification, whether for the benefit of that other person or for
the
benefit of another person,
in order to act, personally or by influencing another person so to
act, in a manner –
that amounts to the –
(aa) illegal, dishonest, unauthorised, incomplete, or biased; or
(bb) misuse or selling of information or material acquired in the
course of the,
exercise, carrying out or performance of any powers, duties or
functions arising out of a constitutional, statutory, contractual
or
any other legal obligation;
that amounts to –
(aa) the abuse of a position of authority;
(bb) a breach of trust; or
(cc) the violation of a legal duty or a set of rules;
designed to achieve an unjustified result; or
that amounts to any other unauthorised or improper inducement to
do or not to do anything.
is guilty of the offence of corruption.
”
“
Gratification”
is defined in s 1 of the PCCA Act as including:
“
(a) money, whether in cash or otherwise;
any donation; gift, loan, fee, reward, valuable security;
property or interest in property of any description whether movable
or immovable, or any other similar advantage...
”
Section 12 provides as follows:
“
1. Any person who, directly or
indirectly –
accepts or agrees or offers to accept any gratification from any
other person, whether for the benefit of himself or herself or
for
the benefit of that other person or of another person; or
gives or agrees or offers to give to any other person any
gratification, whether for the benefit of that other person or for
the
benefit of another person –
in order to improperly influence, in any way –
(aa) the promotion, execution or procurement of any contract with
a public body, private organisation, corporate body or any other
organisation or institution; or
(bb) the fixing of the price, consideration or other moneys
stipulated or otherwise provided for in any such contract; or
as a reward for acting as contemplated in paragraph (a),
is guilty of the offence of corrupt activities relating to
contracts.
Section 13 provides as follows:
“
1. Any person who, directly or
indirectly, accepts or agrees or offers to accept any gratification
from any other person, whether
for the benefit of himself or herself
or for the benefit of another person, as –
an inducement to, personally or by influencing any other person
so to act –
award a tender, in relation to a contract for performing any
work, providing any service, supplying any article, material or
substance
or performing any other act, to a particular person; or
....
”
Section 50 of POCA provides that the Court shall make an order
applied for under s 48(1) if the Court finds on a balance of
probabilities
that the property is,
inter alia
, the proceeds
of unlawful activities.
As set out above it is first respondent’s case that the four
cheques in the total amount of R2 925 092,63 were
given to
him by the directors of MOM as entirely unsolicited gifts.
In my view this explanation is utterly improbable and the only
plausible inference to be drawn from first respondent’s own
allegations is that the payments were made and accepted as a
“
gratification
” in order for him to act in a
manner envisaged in s 3 of the PCCA Act.
From the start it is noteworthy that although, according to first
respondent, the directors of MOM wished “
to do something for
the Trust
” they instead shortly thereafter made out the
four cheques in favour of first respondent. First respondent’s
attempt
to explain why the directors should have decided to visit
their largesse upon him as opposed to the Trust, namely that they
were
grateful that he had provided them with the opportunity of
participating in the project, is, in my view, devoid of substance.
The very considerable sum of R2,9 million is clearly out of all
proportion to any favour which first respondent may have done for
MOM
in his personal capacity. It is of some interest that first
respondent himself volunteers a possible unlawful motive for MOM’s
generosity towards him, which generosity went far beyond being a mere
“
token of appreciation”
for his assistance.
First respondent also does not explain why he opted to accept the
“
gifts
” in his personal capacity instead of
instructing the directors to give the money to the Trust which, after
all, was the body
which had actually assisted them.
It must also be remembered that the directors of MOM were, according
to first respondent, young and previously disadvantaged. The
contract
awarded to them by first respondent was a life line for their
business. They obviously had no access to a sum of the magnitude
of
R2,9 million prior to being awarded the contract. This money could
only have been sourced from funds initially provided by the
Provincial Housing Board, in other words, public money, and first
respondent could not but have been aware of this. It is inconceivable
in the circumstances that, if the money was not in fact paid to him
as a gratification, he, as general manager of a charitable
trust
tasked with the alleviation of the suffering of a poor community
would have accepted it. I venture to suggest that any honest
person
in the position of first respondent would have rejected such a “
gift
”
out of hand as being entirely inappropriate and uncalled for.
The first respondent also proffers no explanation whatsoever as to
how the four cheques came to be made out in the precise amounts
which
were required to settle his bond and to purchase the respective motor
vehicles. Logic dictates that there must have been
discussions
between himself and the directors of MOM from time to time during
which the respective amounts required were agreed
upon. This, in my
view, completely undermines first respondent’s version.
Furthermore, as was submitted by Mr. van der Linde,
there is no
evidence in either the Preservation or Forfeiture applications that
first respondent ever disclosed to the Trust that
he had received the
four cheques as a gift or that he had disclosed this fact to the
South African Revenue Service and had paid
donations tax thereon.
In
S v Selebi
2012 (1) SA 487
(SCA) the following was stated
at 504 A – C:
“
Besides, there is
a presumption in our law that mens rea is required for a
contravention of a statutory provision. In the case of
a
contravention of s 4 of the PCCA Act the legislature has made it
easier for the State to prove the presence of '
intention'
.
Section 24 of the PCCA Act provides that once the prosecution has
proved that gratification (payment) was accepted or agreed and
the
State can show that, despite having taken reasonable steps, it was
not able with reasonable certainty to link the acceptance
of the
gratification to a lawful authority or excuse on the part of the
person charged, and in the absence of evidence to the contrary
which
raises reasonable doubt, it is sufficient evidence that the person
charged accepted such gratification of that person 'in
order to act'
in a manner envisaged in s 4 of the PCCA Act. The provisions relate
to a rebuttable presumption of mens rea, including
knowledge of
unlawfulness, which is rebuttable by the person charged.
”
In my view first respondent has failed to rebut the aforementioned
presumption of
mens rea
on his part.
It is, in my view, clear that the amount of R2,9 million was not paid
as an “
unsolicited
” gift. The inference is
irresistible that the payments were not made altruistically by MOM
but were made for an unlawful
purpose and that first respondent
accepted that gratification in order to act in a manner envisaged in
s 3 of the PCCA Act. No
other plausible inference suggests itself.
In my view therefore the applicant has succeeded in establishing on a
balance of probabilities that the payments were accepted
by first
respondent with the requisite corrupt intention. The property at
issue in this application is therefore clearly the proceeds
of
corruption and liable to forfeiture.
Mr. van der Linde submitted further that first respondent committed
money laundering in contravention of s 4 of POCA by purchasing
the
first BMW, the Pathfinder and the Polo motor vehicles; settling his
outstanding mortgage bond amount; and trading in both the
first BMW
and the Polo motor vehicles while knowing very well that they were
illegally acquired and that the bond was illegally
settled; and while
knowing that the trade-ins of the first BMW and the Polo motor
vehicles had or were likely to have the effect
of “
concealing
or disguising the nature, source, location, disposition or movement
”
of the four gratifications and enabling or assisting first respondent
to remove or diminish these gratifications. I agree
with this
submission. It is clear, in my view, that the actions of first
respondent as set out above amounted to money laundering
in
contravention of s 4 of POCA.
Mr. Scott, with reference to
Mohunran v NDPP (Law Review Project
as amicus curiae)
[2006] ZASCA 12
;
2007 (4) SA 222
(CC) at 264, stressed the
draconian nature of the relief sought by applicant and submitted that
the Court should be astute to the
fact that forfeiture could produce
arbitrary and unjust consequences and should be vigilant to ensure
that the statutory provisions
were not used
in terrorem
and
that there has been no overreaching and abuse.
In this matter, however, where first respondent, who as General
Manager of the MDT was tasked with overseeing a project designed
to
help the poorest, most disadvantaged and homeless members of society,
instead in effect helped himself to R2,9 million of public
funds to
purchase three luxury motor vehicles and to pay off the bond on his
own home, I am satisfied that such consequences as
may flow from the
forfeiture of those properties are entirely just and fully warranted.
First respondent’s actions can only
be described as greedy,
cynical and opportunistic.
There was some debate concerning the exclusion of second respondent’s
interest in the immovable property. See
Mazibuko and Another v
National Director of Public Prosecutions
2009 (6) SA 479
(SCA).
Mr. van der Linde and Mr. Scott eventually agreed, however, upon a
draft order to be granted in the event of the forfeiture
application
succeeding dealing,
inter alia
, with this issue and it is not
necessary to consider it any further. I am indebted to them for their
assistance in this regard.
Accordingly the application succeeds.
In the circumstances the following order will issue:
“
1. An Order be and is hereby granted in
terms of section 50(1) of the Prevention of Organised Crime Act 121
of 1998 (POCA), declaring
forfeit to the State, with costs, the
following property:
1.1. Erf 1808, Theescombe, Nelson Mandela Bay Metropolitan
Municipality also known as 14 Overdale Street, Theescombe, Port
Elizabeth
to the extent of
R1 481 640,27 (the house)
;
1.2. A grey BMW 7 Series 750i Sedan Automatic motor vehicle with
registration number FKS 360 EC, engine number 20824550 and chassis
number WBAKA2030CW13128 with an estimated value of
R775 912,29
;
1.3. A silver Nissan Pathfinder 2.5 5/SP Automatic motor vehicle with
registration number FDF 257 EC, engine number YD25872793A
and chassis
number YSKJVWR51Z0229593 with an estimated value of
R473 616,51
;
and
1.4. A red BMW 1 Series Sedan 120i Convertible motor vehicle with
registration number FJK 700 EC, engine number B200I616 and chassis
number WBAUL52000VL55186 with an estimated value of
R193 000
(the 1 Series.)
2. In terms of section 50(6) of POCA, paragraph 5
below shall take effect 45 days after publication of a notice thereof
in the Government
Gazette unless an Appeal is instituted before this
time in which case this Order will take effect on the finalisation of
such appeal.
3.
Mr. Michael Tim
Koe (the Curator) of Mike Tim Koe Trustees CC
,
a firm of Insolvency Practitioners and Liquidators, who was appointed
in the Preservation Order to take care of the property,
be and is
hereby directed to continue acting as such for the purpose of this
Order.
4. Pending the taking effect of this Order, the property shall remain
in the control of the Curator, who shall have authority to
sign all
transfer and registration documents pertaining to the property.
5. On the date on which this Order takes effect, to wit 45 weekdays
after publication in the Government Gazette, the Curator shall
sell,
at reasonable market price:
5.1. The house by way of public auction or private treaty and cause
the proceeds of such sale in excess of
R1 481 640,27
,
less any payments in relation to his fees and disbursements as
approved by the Master of this Court, to be paid to the respondents.
The sum of
R1 481 640,27
shall be deposited into the
Criminal Assets Recovery Account;
5.2. The three motor vehicles by way of public auction or private
treaty and cause the proceeds of such sale, less any payments
made to
ABSA Bank, the Interested Party herein and in relation to his fees
and disbursements as approved by the Master of this
Court, to be
deposited into the Criminal Assets Recovery Account.
6. The applicant is directed to cause notice of this order to be
served on the respondents, the Interested Party, Wentzel Charles
Meyers and Jocelyn Brian Meyers.
7. The applicant is further directed to publish a notice of this
Order in the Government Gazette as soon as it is practicable.
8. The Registrar of this Court is requested to deliver a copy of this
judgment to the Chairman of the Mzingisi Development Trust
and the
Chairman of the Provincial Housing Board.
___________________
J.D. PICKERING
JUDGE OF THE HIGH COURT
Appearing on behalf of applicant: Adv. Van der Linde S.C.
State Attorney, Port Elizabeth
Appearing on behalf of respondents: Adv. Scott S.C.
Instructed by: Roland Meyer Attorneys: Mr. Meyer